The Judiciary vs. the Executive...

[KnifeMissile]

Where are the checks and balances?

Executive branch to EFF: We're above the law

6/21/2006 11:50:03 AM, by Nate Anderson

The Electronic Frontier Foundation, which has filed suit against AT&T over the company's possible complicity with NSA spy programs, suffered a setback last month when the government invoked the "state secrets privilege" in an attempt to have the entire case quashed. The hearing over "state secrets" will take place on Friday morning, and the government has recently filed its final documents in the case. The claims made there are quite extraordinary; the executive branch basically claims that it is above judicial scrutiny.

"The court-even if it were to find unlawfulness upon in camera, ex parte review-could not then proceed to adjudicate the very question of awarding damages because to do so would confirm Plaintiffs' allegations."

The EFF interprets the government statement this way:

Essentially the Government is saying that, even if the Judiciary found the wholesale surveillance program was illegal after reviewing secret evidence in chambers, the Court nevertheless would be powerless to proceed, because the Executive has asserted that the Program, which has been widely reported in every major news outlet, is nevertheless still such a secret that the Judiciary (a co-equal branch under the Constitution) cannot acknowledge its existence by ruling against it. In short, the Government asserts that AT&T and the Executive can break the laws crafted by Congress, and there is nothing the Judiciary can do about it.

The "state secrets privilege" is a privilege actually created by the courts 50 years ago. Its purpose is to shield the government from revealing information in court which could damage the country's security. Because it is such a potent tool, the Federation of American Scientists dubs it "the nuclear bomb of legal tactics," and when the government uses it, it almost always wins. Case dismissed.

It's a privilege that the Bush administration has already invoked several times, most recently against a lawsuit from the Center for Constitutional Rights. The CCR contends that the "state secrets" claim is ridiculous, since it assembled its case based on public documents and statements from people like Bush, not on classified materials.

As the debate rages on in the courtroom, the news media continue to report on the size and scope of the program. The newest allegation comes from Salon, and alleges that the government built a secret room in an AT&T network control facility near St. Louis.

In interviews with Salon, the former AT&T workers said that only government officials or AT&T employees with top-secret security clearance are admitted to the room, located inside AT&T's facility in Bridgeton. The room's tight security includes a biometric "mantrap" or highly sophisticated double door, secured with retinal and fingerprint scanners. The former workers say company supervisors told them that employees working inside the room were "monitoring network traffic" and that the room was being used by "a government agency."

The claim is similar to the one made in the EFF case, where a secret room was allegedly built at an AT&T facility in California. Though the existence of a secretive NSA spy program with direct links into the domestic US voice and data grids has now been well documented, it has so far proved impossible to turn up any hard evidence about what the spooks are doing with all their data, or even what data is being collected. All private attempts at learning if US citizens are being illegally spied upon have been stonewalled by the government, and the same fate looks likely to befall the EFF tomorrow in court. Stay tuned.
Update

The judge deciding the case has issued a set of questions for both parties to consider. They're worth looking over, if only because they show that the judge is taking both sides of this debate seriously, and he doesn't sound likely to simply roll over and accept the government's claims without scrutiny.

How can confirming or denying the existence of the alleged surveillance program at issue here, or AT&T's alleged participation in that program, constitute disclosure of a state secret when the program has been so widely reported in the public sphere?

The debate promises to be an interesting one.

Now, I'm not going to pretend that I understand the statements given by the Executive, so perhaps someone can clarify them to me? However, the EFF's arguments are understandable and quite compelling. It looks like the Executive branch are trying to shield themselves from responsibility and accountability, despite the supposed "checks and balances" imposed by the separation of powers. How else are we to ensure the propriety of the Executive? Of all the governmental branches, it may be most important that the Executive be regulated, since it is the branch that actually executes policy, while the others are impotent without it...

So, how can they be allowed to ignore the powers granted by the US Constitution? To whom are the Executive accountable?
Thank you...

[aceventura3]

Originally Posted by KnifeMissile

To whom are the Executive accountable?
Thank you...

I would say primarily to the electorate and congress. The judicial branch's powers are limited when congress has failed to pass clear legislation.

Specifically in this situation I have one question that will guide my view - Who is the victim? Well, two questions - How has the victim been harmed?

[Willravel]

Originally Posted by aceventura3

I would say primarily to the electorate and congress. The judicial branch's powers are limited when congress has failed to pass clear legislation.

I was thinking the same thing, except that congrass has done absolutely nothing in response to the actions of the executive branch. I'm beginning to wonder if it's such a good thing to have checks and balances while a single party is in power. Could the process of checking and balancing the various branches be made inefective by single party rule?

Originally Posted by aceventura3

Specifically in this situation I have one question that will guide my view - Who is the victim? Well, two questions - How has the victim been harmed?

May I come over to your house and open your mail, e-mail, and listen to phone conversations? If yes, then I'll be over in a few hours. If no, then you have your answer.

[kutulu]

I welcome this. It's about damn time the Bush & Co. admitted that they think they are above the law.

[aceventura3]

Originally Posted by willravel

I was thinking the same thing, except that congrass has done absolutely nothing in response to the actions of the executive branch. I'm beginning to wonder if it's such a good thing to have checks and balances while a single party is in power. Could the process of checking and balancing the various branches be made inefective by single party rule?

I actually think the Clinton/Republican Congress years sets the new standard for me. A moderate Democratic President and a spend thrift Republican Congress.

May I come over to your house and open your mail, e-mail, and listen to phone conversations? If yes, then I'll be over in a few hours. If no, then you have your answer.

I think it would be more like looking through my mail (not stealing my mail, or opening my mail, just looking at the envelopes seeing who it is coming from and going to) If my mail is on public property when you do it, how am I a victim, how have I been harmed?

[Willravel]

Originally Posted by aceventura3

I actually think the Clinton/Republican Congress years sets the new standard for me. A moderate Democratic President and a spend thrift Republican Congress.

Equilibrium is necessary for fair representation, at least in my mind. While Clinton made his mistakes, and the republican congress made their mistakes, one had the feeling that they were able to step back and monitor one another. Admittedly, I was 9 when Clinton was sworn in but from what I remember it seemd to go a lot better than things are going now.

Originally Posted by aceventura3

I think it would be more like looking through my mail (not stealing my mail, or opening my mail, just looking at the envelopes seeing who it is coming from and going to) If my mail is on public property when you do it, how am I a victim, how have I been harmed?

The way I see it is if this is so harmless, then why do we have any privacy at all? Why do we have passwords on e-mail and pin numbers for ATM machines? To me the answer is simple: a level of privacy is necessary in order to remain individual in a representative democracy. I see the forced and/or secret release of my private information as a breach of my right to be an individual. I see this as being similar to warrentless entry into homes or businesses. The government takes information that is not free to be taken, and then tries to excuse it under the tactic of stopping terrorism. How could the government be stopping terrorism by going through my AT&T records? Maybe we should do away with warrents altogether so as to save us from terrorism. Maybe we should do away with free speach so as to stop terrorist from plotting. Maybe we should not allow free religion so as to prevent Islamic terrorists from coming over to US soil.

The damage that these actions are doing is not only present, but far reaching. If my phone and e-mail records are not safe, then what information is? The harm is that we have laws that protect our privacy, and those laws are being broken. I recognise and respect that you do not need your privacy. I am not that way. My right to privacy, at least on some level, is an inaliable right. I see the taking of my privacy as a travesty and a betrayel.


Edit: Actually, I think that it is a lot like opening someone else's mail. It's illegal and it's a breach of privacy. The problem is that Congress is dominated by the party who is committing the crimes, so it is clearly less likely to presue the issue. The same is true of the Judicial branch.

[aceventura3]

Originally Posted by willravel

The way I see it is if this is so harmless, then why do we have any privacy at all?

I am not saying the governemnt asking for and receiving the records is "so" harmless - I just ask the question about who was harmed and how? If I get a better understanding of that, then I can determine how to react. Looking at the big picture, if no one got hurt - I think government resources are better used fighting real crimes involving real victims.

Why do we have passwords on e-mail and pin numbers for ATM machines? To me the answer is simple: a level of privacy is necessary in order to remain individual in a representative democracy.

I think the opposite is true. In order to remain individual in a representative democracy one has to forgo certain privacies. An extreme example - if you have a child, you can not keep its birth private, the community has a right to know and a right to know if your the Dad, can't keep that private either, and a right to take money out of your check to support the child if needed, therfore you can't keep your income private. Also being in a representative democracy requires certain sacrifices for the good of the whole at the expense of the individual (I think that saying was in a Star Trek movie - but its true)

I see the forced and/or secret release of my private information as a breach of my right to be an individual. I see this as being similar to warrentless entry into homes or businesses. The government takes information that is not free to be taken, and then tries to excuse it under the tactic of stopping terrorism.

If the info was "so" private and "so" valuable to the individual why was the infor given to the phone company? For those who really want privacy, don't use a common carrier. I don't think 99.9999% of the population cares what AT&T does with the records of phone calls made and recieved

How could the government be stopping terrorism by going through my AT&T records? Maybe we should do away with warrents altogether so as to save us from terrorism.

Before I worry about phone records, I want to stop: Speed traps/red light cameras/sting operations/IRS audits/payroll tax deductions/spam/etc./etc/etc

The damage that these actions are doing is not only present, but far reaching. If my phone and e-mail records are not safe, then what information is? The harm is that we have laws that protect our privacy, and those laws are being broken. I recognise and respect that you do not need your privacy. I am not that way. My right to privacy, at least on some level, is an inaliable right. I see the taking of my privacy as a travesty and a betrayel.

Iwould never assume any phone conversation/email/public comment/written communication is "safe". With today's technology anyone can being in on just about everything I do and say. The only real safety is that - nobody really cares. However, if I started talking or writing about doing something against a "high value" target, today, at somepoint it is going to get someone's attension.

[Willravel]

Originally Posted by aceventura3

I am not saying the governemnt asking for and receiving the records is "so" harmless - I just ask the question about who was harmed and how? If I get a better understanding of that, then I can determine how to react. Looking at the big picture, if no one got hurt - I think government resources are better used fighting real crimes involving real victims.

Let's put it this way. I am a freaking liberal in every sense of the words current incarnation. I am vehemently anti Bush, anti war, anti pretty much anything and everything the conservatives call their own. I don't do it out of spite or anything, it's simply a difference of princeples. I have, on many occasions, said that President George W. Bush should be impeached because of misleading congress into a war of aggression. Is it illegal to say this? Nope. What if I were Arab American and said this over a phone to a friend in Iraq? I would be put on a terrorist watch list, and could potentially be taken from my home or on vacation by American forces of some kind. It's happened before and is currently happening, BTW.

Until we see evidence that wire tapping and such has stopped any terrorism whatsoever, the excuse that it is to stop terrorism is not yet apt. It would not breach security to provide evidence to the AP that a terrorist plot was foiled by phone tapping and such, as everyone who doesn't live under a rock knows that the US government taps phones.

Originally Posted by aceventura3

I think the opposite is true. In order to remain individual in a representative democracy one has to forgo certain privacies. An extreme example - if you have a child, you can not keep its birth private, the community has a right to know and a right to know if your the Dad, can't keep that private either, and a right to take money out of your check to support the child if needed, therfore you can't keep your income private. Also being in a representative democracy requires certain sacrifices for the good of the whole at the expense of the individual (I think that saying was in a Star Trek movie - but its true)

"The good of the many outweighs the good of the few." -Spock, Star Trek 2: The Wrath of Kahn

Excellent movie. The problem is that this wire tapping program benifits the few who hold office, and is detrimental to those who are not. The fact that we live in a democracy shows that we are willing to have slightly less security in order to remain free. Frankly, we could live in a completly secure and safe society if we did away with the Bill of Rights. Can you imagine how many criminals we could catch if we didn't need warrents? Can you imagine how easy it would be to control a society if there wasn't free press? The problem is that the loss of these freedoms IS harmful to all free people.

Originally Posted by aceventura3

If the info was so private and so valuable to the individual why was the infor given to the phone company? For those who really want privacy, don't use a common carrier. I don't think 99.9999% of the population cares what AT&T does with the records of phone calls made and recieved

I expect AT&T to have some backbone and stand up for it's customers, like Google. If 99.9999% of society doesn't care, then why is it all over the news that AT&T is doing this?

Originally Posted by aceventura3

Before I worry about phone records, I want to stop: Speed traps/red light cameras/sting operations/IRS audits/payroll tax deductions/spam/etc./etc/etc

Actually income taxes are illegal, but that's for an entirely different thread. Speed traps, red light cameras, sting operations, etc. are all proven methods of deterring, preventing, or catching criminals. There is no evidence that gaining access to my phone records without either my permission or a court order is in any way effective.

Originally Posted by aceventura3

I would never assume any phone conversation/email/public comment/written communication is "safe". With today's technology anyone can being in on just about everything I do and say. The only real safety is that - nobody really cares. However, if I started talking or writing about doing something against a "high value" target, today, at somepoint it is going to get someone's attension.

Don't let the fear in the house, it brings bad company.

We should be able to live in a society that values freedom and security working in tandum. When one side gets too powerful, it means trouble for everyone.

[KnifeMissile]

Originally Posted by aceventura3

I would say primarily to the electorate and congress. The judicial branch's powers are limited when congress has failed to pass clear legislation.

But how do we, the electorate, hold congress accountable for anything if they may keep their actions secret and ignore our subpoenas and warrants?

Specifically in this situation I have one question that will guide my view - Who is the victim? Well, two questions - How has the victim been harmed?

I think it would be more like looking through my mail (not stealing my mail, or opening my mail, just looking at the envelopes seeing who it is coming from and going to) If my mail is on public property when you do it, how am I a victim, how have I been harmed?

It's interesting that you find these points important. It sounds a lot like the ends justifying the means. If no harm is noticed by doing something wrong, how wrong can it be? If I steal something of yours that you didn't even know you had or wouldn't notice if it were gone, did I really do anything wrong?

Your mail analogy isn't bad except for the mail being on public property. Instead of improving analogies, lets just examine the issue. The phone companies enjoy common carrier status which, while shielding them from liability, commits them to confidentiality. That's why warrants are needed to compel them to reveal said confidences to the government (except to the Executive, it seems...).

None of this is my actual point, however.

I'm not concerned about why the Judiciary is taking action against the Executive, I'm concerned about what powers the Executive thinks it has. I think we can all agree that no one person or organization is (or should be) above the law. So, how can the Executive not answer to the Judiciary?

[roachboy]

we, the electorate, are in a position to hold elected officials to account for their actions once every 2, 4 or 6 years, depending on who you want to hold accountable. that means we, the electorate, are free one day every 2 years. the idea that the american system is such that representatives are accountable to the people is a fiction outside of that.

the only other way to hold representatives to account is to organize politically and bring pressure to bear directly on them.

[ubertuber]

Originally Posted by knifemissle

To whom are the Executive accountable?

Wow knifemissle, I think you've extracted the most interesting question I've seen come from these issues... I couldn't actually answer it (yet, if ever), but I have a couple of cents to throw in. The executive is certainly NOT responsible to the legislature - at least not in a sense that one trumps the other. I know this idea of "checks and balances" is axiomatic (or at least we think it is), but there's more there than the knee jerk we usually give. The Constitution explicitly avoided a system in which the national legislature selects or controls the executive. Think about the fact that, while the writers of the Constitution held the election of the executive one step removed from the public, they also kept that election the hell away from Congress. So while the President may be accountable to Congress in the form of impeachment, he is not necessarily responsible or subordinate to the legislature. I'm not sure you could even say that he derives his authority from the legislature. Well... Maybe you could. I'd have to think about it.

Originally Posted by aceventura3

Specifically in this situation I have one question that will guide my view - Who is the victim? Well, two questions - How has the victim been harmed?

Ace, I see the value in your impulse to ask these questions - after all, the answers should help to focus the debate. However, I think it is important to note that no one needs to be harmed for a right to have been abrogated. That's the whole bit with rights - they pre-exist transgressions regardless of damages, and sometimes in spite of damages. In fact, we suffer damages in the defense of our rights all the time because we see the protection of them as essential to the nature of our national character. Imagine a situation in which a serial killer has been caught and arrested but the evidence had been collected in violation of his 4th amendment rights. The case is thrown out and the criminal goes back to the street - and in this case it is clear that while the killer's rights were protected, a significant damage has been inflicted to the past and especially future victims. But still our system insists on the protection of rights. I'm not trying to sidetrack you with some lame analogy - merely trying to illustrate that I don't think your questions capture the whole of the issue accurately.

Personally, I think the executive's arguments are clever. I especially like this bit: "the Program, which has been widely reported in every major news outlet, is nevertheless still such a secret that the Judiciary (a co-equal branch under the Constitution) cannot acknowledge its existence by ruling against it." It's so circular and delicious! However, it's also erroneous. I don't think that anyone is trying to argue that the executive does not have the power to collect or classify information in cases which reasonably enhance national security. The whole point here is that this program's collection and classification may be out of proportion to its national security benefits. So, if the court did indeed rule against the program, that would be a de facto claim that the program didn't deserve its special status or classification. An argument that Judiciary (a co-equal branch under the Constitution) cannot acknowledge its [the program's] existence by ruling FOR it and therefore the case should be dismissed would have been gutsier and more internally consistent. But that one probably looks a little too ridiculous.

[Willravel]

Spudly McTater speaks the truth.

[KnifeMissile]

Originally Posted by ubertuber

Wow knifemissle, I think you've extracted the most interesting question I've seen come from these issues... I couldn't actually answer it (yet, if ever), but I have a couple of cents to throw in. The executive is certainly NOT responsible to the legislature - at least not in a sense that one trumps the other. I know this idea of "checks and balances" is axiomatic (or at least we think it is), but there's more there than the knee jerk we usually give. The Constitution explicitly avoided a system in which the national legislature selects or controls the executive. Think about the fact that, while the writers of the Constitution held the election of the executive one step removed from the public, they also kept that election the hell away from Congress. So while the President may be accountable to Congress in the form of impeachment, he is not necessarily responsible or subordinate to the legislature. I'm not sure you could even say that he derives his authority from the legislature. Well... Maybe you could. I'd have to think about it.

Thank you for your kind words about my thread. I hope it will serve as a model for future posts in this forum so I won't have to take another two year hiatus (seriously, check my post history!).

I never meant to imply that any one governmental branch trumps another. In fact, I'm implying quite the opposite. I meant to say that they're all peers and must respect each other, checking each other's actions and balancing their powers. I think this includes respecting the Judiciary's power to execute the lawsuit. Much more than the invasion of privacy, this is what bothers me...

Ace, I see the value in your impulse to ask these questions - after all, the answers should help to focus the debate. However, I think it is important to note that no one needs to be harmed for a right to have been abrogated. That's the whole bit with rights - they pre-exist transgressions regardless of damages, and sometimes in spite of damages. In fact, we suffer damages in the defense of our rights all the time because we see the protection of them as essential to the nature of our national character. Imagine a situation in which a serial killer has been caught and arrested but the evidence had been collected in violation of his 4th amendment rights. The case is thrown out and the criminal goes back to the street - and in this case it is clear that while the killer's rights were protected, a significant damage has been inflicted to the past and especially future victims. But still our system insists on the protection of rights. I'm not trying to sidetrack you with some lame analogy - merely trying to illustrate that I don't think your questions capture the whole of the issue accurately.

Personally, I think the executive's arguments are clever. I especially like this bit: "the Program, which has been widely reported in every major news outlet, is nevertheless still such a secret that the Judiciary (a co-equal branch under the Constitution) cannot acknowledge its existence by ruling against it." It's so circular and delicious! However, it's also erroneous. I don't think that anyone is trying to argue that the executive does not have the power to collect or classify information in cases which reasonably enhance national security. The whole point here is that this program's collection and classification may be out of proportion to its national security benefits. So, if the court did indeed rule against the program, that would be a de facto claim that the program didn't deserve its special status or classification. An argument that Judiciary (a co-equal branch under the Constitution) cannot acknowledge its [the program's] existence by ruling FOR it and therefore the case should be dismissed would have been gutsier and more internally consistent. But that one probably looks a little too ridiculous.

I very much like your characterization of the issue, here. While I don't wish to make aceventura3's argument for him, I think his initial question of "how has the victim been harmed?" was his answer to "may be out of proportion to its national secuirty benefits." His argument might go something like: it doesn't harm anyone and it helps the government catch real bad guys so it would be foolish to let something as academic as legality stop something so pragmatic like our safety...

[aceventura3]

I ask my question as a basis for understanding the issue or a starting point. On the surface I don't see a violation of my Constitutional right to privacy, nor do I see how I have been harmed. I agree that bigger issues may come into play and I don't minimize protecting our freedoms outlined in the Constitution, however, when it come to privacy rights issues I think there are other more clear violations of my privacy rights. I think this issue is being blown out of proportion by the media and the anti-Bush people. I do want to have an open mind, and asked the two questions in case I don't see it clearly.

I think the balance of power between the three branches of government goes back and forth in various directions over time. In war conditions traditionally the executive branch gains an advantage. I know some will argue if we are really at war, but ignoring that for now, given war time conditions we have always had to compromise certain rights and privalages. Within reason I think this is o.k. (I do understand that standard is subjective) In the past the executive branch went to far in a few situations, but the phone records compared to things that were done in the past, pale in comparison - even if you assume the government violated the law in this situation.

The President is subject to impeachment at any time. The electorate could demand Congress take action. Opportunity to regain balance is available between elections.

[Willravel]

I do see this along the same lines as the illegal domestic wiretapping issue that was and is still a huge problem that has yet to be resolved. The Constitution, as we all know, outlines what the government can do, and the Bill of Rights makes sure that the government knows what it cannot do. The Bill of Rights has been interpreted to include the right to privacy (in Amendments 9 & 10). Whether or not the access to AT&T records is directly harmful I cannot say. It could be very harmful to some people, but it's not likely going to ruin any lives directly. Of course, that can't always be the issue. Most illegal searches are little more than a neusence. When a police officer illegally went through my car back in high school, he didn't find any drugs or weapons. All he found was an empty taco bell bag and some gum. All he did was waste a few minutes of my time. The problem with something like this is precedent. While it was not directly harmful to me for him to invade my car illegally, it sets a precedent for the next time he wants to go through someone's car, or someone's house. I see this as "give them an inch, and they'll take a mile" in a way, because that's been happening for a while. Tha last big thing was the need for security. 9/11 scared the living shit out of people, so we asked for security. Unfortunatelly, we now have legal racial profiling, phone taps, being detained without trial, a war that seemingly will have no end, media bias, and a slew of other problems, and none of them are even bearing fruit.

If the US government can look at my phone conversations without me knowing it, what else can they do without me knowing it? Am I on a terrorist list? I probably am because of my other big post about 9/11. How do I ever know?

[Mojo_PeiPei]

Sorry Will, the right to privacy is held in the 4th amendment, 9 & 10 pertain to the enumeration, retention, and delegation of powers:

#9

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

#10

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Maybe you aren't misspeaking, as 9 & 10 have been used creatively in certain cases. Not that I think its a bad thing, but I do find it interesting that the word privacy is not found in the Bill of Rights.

On to the actual post, I learned two things which I think pertain and are an interesting way of looking at the separation of powers (or lack thereof).

In my political philosophy class when we were learning about Hobbes, Locke, Montisque and all those old foggies, my professor made an interesting point in that it seems to be hinted at in all of their writings that it is the executives very duty to push the limits and push for as much power as possible. If he isn't doing that then he isn't really doing his job.

Then there was the pendulum power swing between Congress and the President. The bottom line is pretty easy and I'm sure not all that mind blowing to anybody here: Think of the power relationship like a pendulum in a grandfather clock. Starting from the middle (for reference we'll call it 6 0'clock) to either side you have congress and on the other the president. Now Ideally the pendulum swings to and from evenly , always passing 6. The reality is though that when the pendulum swings in favor of the president, it never fully resets to 6 o' clock, there is a permanent shift in favor of the president. Now that is not to say that the president doesn't get checked, and he power never declines; but the bottom line is that 6 is no longer the middle.

SOmething interesting about Presidential power and the judiciary will be decided soon, the SC is going to render it's ruling on Gitmo bay and the tribunals.

[Willravel]

Originally Posted by Mojo_PeiPei

Sorry Will, the right to privacy is held in the 4th amendment, 9 & 10 pertain to the enumeration, retention, and delegation of powers:

#9


#10


Maybe you aren't misspeaking, as 9 & 10 have been used creatively in certain cases. Not that I think its a bad thing, but I do find it interesting that the word privacy is not found in the Bill of Rights.

I always saw the right to privacy bueried in 9 and 10, but I can see where 4 makes more sense. Another interesting point, 'marriage' and 'homosexual' don't show up in the BOR either. I dunno. I'm not even sure if I'd need the right to privacy to be in the BOR at all. It always has seemed to be to be fundamental, like freedom of speech. While I realize my perceptions are not always alike those of others, it surprses me that so many do not feel a right to privacy is necessary.

[Mojo_PeiPei]

Privacy is innate, but it has limitations, it is oft referred to as a "reasonable expectation". As far as your comment about homosexuality and marriage, that point is best deferred to the 10th amendment, that's why DOMA prevails as the law of the land. That is at the heart of the whole "judicial activism" argument.

[dksuddeth]

Originally Posted by willravel

I always saw the right to privacy bueried in 9 and 10, but I can see where 4 makes more sense. Another interesting point, 'marriage' and 'homosexual' don't show up in the BOR either. I dunno. I'm not even sure if I'd need the right to privacy to be in the BOR at all. It always has seemed to be to be fundamental, like freedom of speech. While I realize my perceptions are not always alike those of others, it surprses me that so many do not feel a right to privacy is necessary.

One would think that ALL rights would be fundamentally innate, but they get watered down, legislated away, or judiciated out of existence because people choose to misinterpret the constitution according to their ideals or emotions instead of the original intent of the authors.